June 29, 2012

After reading and stewing about it all day, I’ve concluded that what Roberts has done is fundamentally shift the constitutional debate away from the liberal assumption since the Woodrow Wilson era that an Imperial Presidency and supine Congress can pretty much do as they please so long as it’s covered by at least one of those fig leaves known as the General Welfare, Necessary and Proper or Commerce clauses of the Constitution.

The new assumption is, thanks to Roberts, that at least two of those clauses in fact cannot simply be dragooned into the service of whatever a passing majority in Congress wants to do. And having shifted the meaning of those two clauses, courts will likely now have to view the other clause differently as well.

In other words, the Constitution means something today that it didn’t yesterday, at least in terms of constitutional precedent. It’s not a grand rout of liberalism from the field of battle, but the correlation of constitutional forces has now shifted under their feet in such a way that they must go over to the defensive on ground not of their choosing.

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage.

UPDATE: Shikha Dalmia: “This ruling should put to rest the idiotic notion that conservative jurists are ideologically driven, partisan hacks who never seriously consider the other side’s argument. ObamaCare opponents had a lock only on one justice going in: Clarence Thomas. Who else they might muster was always up in the air given that the conservative justices try to balance multiple competing concerns: originalism; stare decisis; judicial modesty; the court’s legitimacy…yada, yada, yada. Kennedy, who votes often with the liberal wing of the court, was regarded as the most likely swing vote. That Roberts cast that vote on a case of such huge importance to conservatives and libertarians suggests that he is even less easy to pigeonhole ideologically.”

That will not stop the usual hack-pundits and politicians from saying the same thing in the next big case. It’s a way of working the refs, and sometimes it works. Notice nobody ever blames the Court’s four liberals for voting as a bloc.

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